DOMMETI VENKATA REDDI Vs. KATTA SUBRAHMANYAM

JUDGEMENT

(1.) Defendant is the appellant and he has preferred this appeal against the judgment of the Subordinate Judge, Amalapuram, in O.S. No. 22 of 1961 decreeing the suit of the plaintiff for recovery of possession of plaint ' B ' schedule properties and for past and future profits which are to be decided in separate proceedings. The suit Was laid by the respondent (plaintiff) in the following circumstances. The plaintiff and three other brothers of his, Sathiraju, Sriramulu and Narasimhamurthy were members of a Hindu Joint family till 1949 when they became div'ded and partitioned their coparcenery properties by metes and bounds. Since the date of division, the plaintiff has been in separate possession and enjoyment of 'B' Schedule property which fell to his share. The properties that fell to the share of his brothers are ' A ' Schedule properties. The plaintiff and his brothers were all members of the Bodaskurru Co-operative Credit Society and they had borrowed separately from the said Co-operative Credit Society. Narasimhamurthy borrowed Rs. 3,000 and he and Sathiraju executed a bond (Exhibit B-8), dated 12th June 1953 in favour of the Society. As the amount was not paid, an award (Exhibit B-I2) Was made and a decree Was passed in terms of the award for recovery of a sum of Rs. 3,285-8-o being the principal and in terest due under the loan bond, Exhibit B-8. In execution of that decree, 27 acres of land including some items in ' A ' Schedule and some items in ' B ' Schedule were brought to sale and the defendant Was the auction purchaser of Rs. 10,000, subject to a mortgage of Rs. 25,000. The defendant then obtained possession of 'B' schedule properties on 27th November, 1960. The crux of the case of the plaintiff is that the defendant Was fully aware that the plaintiff and his brothers became divided and that the plaintiff has been in separate possession of the ' B ' schedule properties and yet he purchased the properties and obtained wrongful possession of the same. The auction sale and delivery of possession are assailed on the ground that the Deputy Registrar of Co-operative Societies had no jurisdiction to attach and sell the properties belonging to a divided coparcener in respect of a debt not incurred by him or the joint family. It is on this ground that he sought recovery of the plaint 'B' Schedule properties from the defendant. The defendant-appellant's case interdlia is to the following: There was no division in status of the joint family of the plaintiff and his brothers and the plea that they became divided in May, 1949, and partitioned their properties by metes and bounds is false and has been set up only to defeat and delay the debts incurred by the joint family. On the date of sale, i.e., 16th March, 1960, there was no such plea that the family became divided and the suit debt was not incurred on behalf of the joint family. Further, no deed of partition or other documents Were filed evidencing partition of the properties in May, 1949. Besides the debt under1 Exhibit B-8, the members of the plaintiff's joint family obtained loans from the Bodaskurru Go-operative Credit Society in the individual names of the members of the family on behalf of the joint family. Since they failed to discharge the debt, the Society obtained an award and in execution of the decree in terms of the award brought the properties to sale and sold them in a public auction. The objection petition preferred by the plaintiff when notice of attachment was served Was dismissed and subsequently also an application made for setting aside the auction sale was dismissed. The plaintiff did not prefer or file any suit or proceedings against the said orders as provided under the Madras Go-operative Societies Act and the rules made thereunder. The order of the Sale Officer dismissing the plaintiff's objection petitions became final and he is therefore precluded from laying the action for recovery of the properties. Even at the time when the plaint'ff's brother filed a petition for setting aside the sale, the plaintiff did not attend or file any document evidencing partition and therefore the application was dismissed and no suit was filed later within the period specified under the Act and the present suit is therefore time barred. The Civil Court has no jurisdiction to question or adjudicate matters relating to the validity or otherwise of the sale or confirmation thereof and the suit is therefore misconceived. Issues were settled on these averments and on the main issues the Subordinate Judge found that the partition pleaded by the plaintiff between himself and his brother is true and valid and that the suit properties fell to the share of the plaintiff. It was also held that the execution proceedings and the consequent sale held on 16th March, 1960 by the Co-operative Department are not Valid and binding on the plaintiff and therefore the defendant has not obtained a Valid title to the properties in question.

(2.) Mr. Parthasarathy, the learned Counsel appearing for the appellant contended that the debt incurred under Exhibit B-8 is not a post-partition debt but a prepartition debt, that the burden is upon the plaintiff to establish that there was partition and division of joint family properties by metes and bounds in May, 1949 and that from the evidence adduced by him, there is no warrant for the inference that there was a partition as pleaded by him and that the debt under Exhibit B-8 Was not a debt incurred on behalf of the joint family. The other contention of Mr. Parthasarathi is that the suit itself is not maintainable in view of the order (Exhibit B-19) of the Sale Officer, dated 23rd March, 1956, dismissing the objection petition, filed by the plaintiff to the notice of attachment (Exhibit B-20) as frivolous. It is also contended by him that the civil Court's jurisdiction is barred as the suit Was not filed within the period of limitation provided under the Co-operative Societies Act and therefore the decision of the Sale Officer as per Exhibit B-19 has become final.

(3.) It may therefore be convenient first to discuss the question whether the suit is not maintainable in view of the decision of the Sale Officer. To appreciate the contention, a few relevant facts may have to be stated. The plaintiff and his three brothers were members of Bodaskurru Co-operative Credit Society. Their sons, Who Were majors, wife of Katta Sriramulu and mother-in-law of Narasimhamurthy were also members of the said Society. The Society Was lending monies on the execution of a surety bond to individual membership to a monetary limit of Rs. 3,000. The plaintiff's son Bhaskara Rao was also borrowing as a member of the Society. The loan bonds, Exhibits 6-7 to B-10 show that the plaintiff and his brothers borrowed monies from the Society and there Were awards and decrees against them as evidenced by Exhibits B-11 to B-13. The Co-operative Society passed a resolution (Exhibit B-14) to the effect that the decree debts under Exhibits B-11 to 8-13 should be collected from the plaintiff and his brothers, but the decree under award Exhibit B-13 which relates to the debt under the bond Exhibit B-8 alone, Was executed by filing the E.P., Exhibit B-15. On filing this E. P. Form No. 6 notice (Exhibit B-16) was served on the plaintiff and his other brothers. It is incumbent under the rules to serve such a notice before attachment is effected to enable the persons whose rights are affected to file objections. Exhibit B-17 is the objection petition filed by the plaintiff and Exhibit B-18 is the notice informing that enquiry would be conducted by the Sale Officer on the date notified thereunder. This notice (Exhibit B-18) Was received by Bhaskara Rao, plaintiff's son on the ground that his father Was away from the State. The Sale Officer on enquiry dismissed the objection petition as frivolous. -Then the propert es which included the suit properties Were attached and an auction sale was held subject to the mortgage and as the defendant happened to be the highest bidder bid Was knocked down in his favour. Narasimhamurthy then filed a petition for setting aside the sale and after due enquiry that petition was also dismissed and Exhibit B-26 is the Order.